Asking Alito the right stuff

Samuel Alito's first Senate hearing to be a federal judge, back in 1990, took all of 15 minutes. Now he faces days of questions as a Supreme Court nominee because he's perceived to be a conservative. But when asked once if he actually is one, he bristled.

Like John Roberts before him, Mr. Alito has a lengthy and respected résumé in law that, in his eyes, helps him decide cases simply by the book. "Most of the labels people use to talk about judges, and the way judges decide [cases] aren't too descriptive," he told the Star-Ledger, a New Jersey newspaper. "Judges should be judges. They shouldn't be legislators, they shouldn't be administrators."

Despite such protestations, however, the idea that being a judge is merely a matter of accurately consulting the law, the Constitution, and the precedents of previous court decisions is widely considered to be conservative - at least in a legal sense.

Yet many of the questions from senators likely to be thrown at Alito, who's now a federal appellate judge on the Third Circuit Court in Philadelphia, will be ideological, and less on his legal philosophy. Why did you argue that a husband should be notified before his wife has an abortion? Why did you allow a Christmas crèche on a public space only if secular displays are put next to it? Why did you allow Muslim police officers in Newark to wear beards?

The issues in such cases, of course, are significant in terms of public policy. And their outcomes and consequences deserve close attention. But it is in his legal reasoning that this nominee, like all Supreme Court nominees, should be sharply questioned.

From his record as a Yale law student, a federal court clerk, a federal prosecutor, and an assistant US solicitor general - who argued 13 cases before the high court (winning 12), Alito is known for diving into the details of law like a dogged researcher. He's also seen as open-minded, hearing out differing views without a set agenda other than being fair.

But if he's confirmed, Alito will probably be added to the column of Supreme Court justices, such as Antonin Scalia and Clarence Thomas, who strictly look to the language of the Constitution in deciding cases. He is not likely to be counted as a "liberal" justice, such as Stephen Breyer, who looks broadly at the "purposes" of constitutional words and bases their legal reasoning on the "consequences" of his decisions in the "real world."

This liberal-conservative divide on the Supreme Court goes beyond simply the justices' written opinions.

Mr. Breyer has recently written a book ("Active Liberty") that serves as a rejoinder to a 1997 book by Mr. Scalia ("A Matter of Interpretation") in which he offers a very different judicial philosophy. More than the debate over issues such as abortion or the church-state divide, it is this battle of constitutional interpretations that is most at stake in the coming hearings.

Unlike nominee Harriet Miers, Alito comes with a 15-year written record of his reasoning from the bench. Policy-minded senators need to look beyond the hot issues of their respective interest groups and probe his legal approach with care. Alito's legal philosophy will last far longer than the political issues of today.

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